Applying Consistency To The Retrievable and Irretrievable Consequences of the State

BY MIKE PRESUTTI

Today, Monday December 17th, speaking of his signing of a bill that struck the death penalty from New Jersey’s penal code, Governor Jon Corzine relied on the argument of potential error raising a moral question concerning the taking of an innocent for some greater ideal of the state. Probably unwittingly, Governor Corzine has thus laid the basis of the pro-life argument against abortion. Perhaps from the mutual vein of intended and unintended consequences, we can see the validity in avoiding both practices, which are prone to error and inexact in their prosecutions. Perhaps too, those who fought the Governor on this issue will readily accept it and realize they were fighting against the very same arguments raised in killing the unborn.

First let us establish some legitimate perspective on life itself.
Without life, we can enjoy no other right, enumerated or otherwise, hence, issues that concern the possible eradication of life warrant our most deliberate and certain judgment. Moreover, when such issues force us to make sober decisions, we must choose to err on the side of the least possible consequence because even the slightest “margin of error” represents the deprivation of someone’s life, lest that life be our own or someone we love.

Governor Corzine rightly made the margin of error the cornerstone of his opinion, hopefully he can wrest himself past the politics of abortion, and see the same rationale at work. As for those who opposed him, hopefully they will embrace the governor and see past their own politics which continue to embrace the death penalty. Interestingly enough, as loaded as these issues appear to be religious; empirical data provides us with an immense argument.

Any worthy historic study of law reveals law’s religious influence, yet American jurisprudence has shaped an impenetrable barrier between church and state. Despite this formative barrier, many pro-lifers continue to limit their advocacy to one of religious dogma. There is however, another more rationally compelling and popularly palatable pro-life argument that lies at the very foundation of our American law. There is an argument for life that is not necessarily religious.

Early American law plainly acknowledged the inherent frailty of human
judgment. The shortcomings of human judgment inspired a government
of “checks and balances” and a judiciary that relies on a unanimous concurrence of a criminal jury through a “beyond a reasonable doubt” standard. William Blackstone, whose 18th century Commentaries were the single greatest influence upon early American law, put it best when he wrote, “It is better that ten guilty persons escape than one innocent suffers.”

Despite an exhaustive due-process gauntlet, the scores of recent evidentiary DNA exonerations of convicted death-row inmates reveal our system’s fallibility. Statistically, if these exonerations reflect a random sample of all death-row populations, then we can reasonably surmise that a similar percentage of inmates, whose cases do not possess reliable remnants of DNA evidence await an unjust death. If we can state that an error rate exists for all convicted inmates, not just those who cases possess DNA evidence, then we can safely guess that there are people sentenced to death who do not have DNA evidence or whose evidence has become unusable.

Some advocates of the death penalty may contend that there are no absolutes in anything so a tiny margin of error is a tolerable cost of maintaining an ordered society. Curiosity however compels one to wonder how long such advocates would cling to their unwavering views if the innocent lives at issue belonged to them or to their loved ones.

The perpetual debate over when life actually begins lends great uncertainty to the abortion issue. In the 1973 landmark case of Roe v. Wade, the United States Supreme Court attempted to provide legal uniformity not necessarily to when life begins but rather, when the state is compelled to protect life within the womb. The court opined that “the point of viability,” when a fetus could survive outside the womb, was the point in gestation where the state could protect an unborn life. This so called “point” however is not a point at all but rather a window of weeks arrived at entirely by medical guesswork just as an obstetrician guesses at a birth due date, which is rarely accurate. Hence, the fate of a possible life, even by Roe’s own principles, rests on a margin of error of days or weeks.

The court arrived at their expedient trimester standard through 1973 neonatal medical technology. Thus, Roe’s trimester standards could actually represent a sliding ruler of sorts tied to advancements in medical technology. Since 1973, premature viability has increased and continues to make strides. Once “gray zone” infants, which are infants born premature as small as 1.1 pounds, which can fit in the palm of your hand, were laid in a corner of the delivery room and allowed to expire. Today many of these infants, delivered before the end of the second trimester as young as 22 weeks of gestation, live and grow to be our fellow citizens.

The Equal Protection Clause of the Fourteenth Amendment embodies a basic distain for ambiguity and inconsistent application of justice.
It is said that the fourteenth amendment is a directive that under the law all persons similarly situated should be treated alike, by the same standards of law. The practicalities of abortion however belie this spirit because medical “verdicts” can vary significantly from one medical practitioner to another and can even depend on a physician’s own values on the subject. A women who wishes an abortion but is carrying past the end of the second trimester, can “doctor shop” until she finds a practitioner willing to call the pregnancy earlier and abort the fetus. Here, similarly situated fetuses and not judged by the same standards. Their fates can depend completely on guesswork.

As Governor Corzine eloquently inferred, in matters of life, we should choose to err on the side of the least possible consequences. If we do not put a convict to death, he will live out his life in prison. However, if we kill an innocent person we can never retrieve his life nor right our error. The consequences of death are irretrievable. If we prohibit common abortions, full-term pregnancies will inconvenience many a women’s life for upwards of five months. If we allow the abortion of a fetus, whom personhood is certainly within the realm of scientific reason, we can never retrieve that life nor have we fulfilled the state’s obligation to protect life liberty and pursuit of happiness. For without life all other rights are expunged.

The decisions become clear when you weigh the consequences at stake; the inconvenience of upwards of five months of someone’s life against the possibility of terminating someone else’s entire life. Caution must be our guide as our governor’s words suggest. Why can’t we err on the side of the least consequence? Why can’t those of us who strive to set public policy on issues of life treat such matters as if it were their own lives or the lives of those people they love?

Governor Corzine has set New Jersey at the forefront of one of today’s main issues of life; hopefully he can apply that same wisdom to the other life issue of abortion, which involves millions of more lives than those eight men once sitting on our state’s death row and certainly, lest not this writer judge, more innocent.

Let us laud the good governor today and prompt him to action tomorrow.

The Case for Repealing the Death Penalty

By Assembly Speaker Joseph J. Roberts, Jr.

 

 

The time has come to abolish the death penalty in New Jersey and replace it with life in prison without parole.

 

After years of second thoughts and consternation about capital punishment, the Legislature is now poised to move repeal legislation forward; Governor Jon S. Corzine has indicated that he will sign such a measure into law.

 

The prospect of eliminating New Jersey’s death penalty statute has never been more favorable.

 

Public support for a capital punishment repeal is at an all-time high, driven in part by the exonerations of dozens of death-row inmates through DNA testing.

 

Meanwhile, the religious and law enforcement communities are galvanized on the issue like never before. In recent weeks, priests, ministers, rabbis, police, and prosecutors have issued statements calling for an end to capital punishment.

 

Finally, there is bipartisan sponsorship on the repeal measures now pending in the Senate and Assembly.

 

If New Jersey succeeds in enacting a repeal, it would become the first state in the country to legislatively abolish capital punishment.

 

“New Jersey is going to be a beacon on the hill,” said Sister Helen Prejean, the Roman Catholic nun who wrote the Pulitzer-nominated “Dead Man Walking” and who has crusaded against the death penalty. “The thing is so broken, it can’t be fixed.”

 

Nearly 45 years have passed since New Jersey’s last execution – January 22, 1963, when Ralph J. Hudson of Atlantic City was electrocuted for the stabbing death of his estranged wife.

 

The law that Mr. Hudson was sentenced under was struck down by the U.S. Supreme Court in 1972, along with the death penalty statutes in every other state. It took New Jersey until 1982 to reinstate its death penalty in a manner consistent with the high court’s guidelines for carrying out capital punishment fairly and consistently.

 

But in the 25 years that it has been effect, New Jersey’s law has been an embarrassing idle threat, a paper deterrent, the epitome of false security.

It is time to end the ruse that this flawed law is salvageable. Here are the reasons why:

· The death penalty is not a deterrent. Statistical analysis shows that murder rates are lower in non-death-penalty states. On average, murder rates are 40 percent higher in death-penalty states. Despite having capital punishment, New Jersey continues to see its share of horrific murders, such as last summer’s execution-style shooting deaths of three college students in a Newark schoolyard.

· It’s cheaper to lock up murderers and throw away the key. A 2005 study by the New Jersey Policy Perspective research group determined the state spent $253 million litigating the death penalty over a 23 years period. That works out to roughly $11 million a year — money that could have been better spent fighting crime and putting criminals in jail.

· The consequences are irreparable if mistakes are made. DNA testing produces new death row exonerations on an almost monthly basis around the country. Overall, 124 death-row inmates have been exonerated, in one case within 48 hours of a scheduled execution. In New Jersey, two men once considered for the death penalty have had their murder convictions disproved by DNA.

· Capital punishment is unevenly applied. Factors such as geography, race, gender, and an individual attorney’s competency can figure into a jury’s verdict. The unfairness of the death penalty’s application is underscored by the most prolific murderer in New Jersey. Charles Cullen – “the killer nurse” – avoided the death penalty even though he told authorities he was responsible for killing 40 patients and confessed to 13 murders.

· Executions don’t produce closure for victims’ families. 60 New Jerseyans who have lost a family member to murder have signed onto a letter urging the Legislature to repeal the death penalty. It is cruel to put these people through the extended ordeal of a death penalty that is illusory and not real.

· What good is a law that doesn’t get used? Of the 197 death-penalty-phase trials that have been held in New Jersey since 1982, death verdicts were issued in only 60 of them, and 48 of those have since been reversed for “serious error” on appeal. Four death row inmates have died in prison, leaving only 8 inmates on death row today. All the law has accomplished is an endless litany of legal appeals.

New Jersey’s death penalty has been debated for a decade. Multiple commissions and committees have studied the issue from all angles – the most recent one spending nine months, holding five public hearings and taking testimony from 70 witnesses.

 

The death penalty is costly, discriminatory, immoral and cruel. We need to lock up killers for life and stop pretending that the execution law protects lives and provides justice for lost lives. It’s time to get New Jersey out of the execution business.

(Note: Assembly Speaker Joseph J. Roberts, Jr. (D-Camden) represents the Fifth Legislative District, which includes portions of Camden and Gloucester counties.)